Citation Nr: 0123345
Decision Date: 09/25/01 Archive Date: 10/02/01
DOCKET NO. 96-40 987 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for post-
traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his parents
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from October 1966 to
September 1968.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a June 1996 rating decision of the Regional
Office (RO) that found that new and material evidence had not
been received to reopen the veteran's claim for service
connection for PTSD.
By rating decision dated in July 1989, the RO denied the
veteran's claim for service connection for PTSD. He was
notified of this decision and of his right to appeal by a
letter dated the following month, but a timely appeal was not
received. As such, that determination became final.
38 U.S.C.A. § 7105 (West 1991). When this case was
previously before the Board in September 1998, it was
remanded for additional development of the record. As the
requested actions have been accomplished, the case is again
before the Board for appellate consideration.
The Board notes that the supplemental statement of the case
issued in May 2001 listed the issue as service connection for
PTSD. However, there was no specific finding that new and
material evidence had been submitted, and it is not clear,
therefore, whether the RO reached that determination. In any
event, under Barnett and Fulkerson, the Board is not bound by
the RO's determination in this regard, and the Board must
also review whether new and material evidence has been
submitted to reopen the veteran's claim. See Barnett v.
Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Fulkerson v.
West, 12 Vet. App. 268, 269-70 (1999) (per curiam) (setting
aside a Board decision to enable the Board to observe the
procedure required by law for reopening of final RO
decisions).
FINDINGS OF FACT
1. In an unappealed rating decision dated in July l989, the
RO denied the veteran's claim for service connection for
PTSD.
2. The evidence added to the record since the July 1989
determination bears directly and substantially upon the
subject matter of whether the veteran has PTSD due to an
inservice stressor, when considered alone or together with
all the evidence, both new and old, and is so significant
that it must be considered in order to fairly decide the
issue.
CONCLUSION OF LAW
New and material evidence has been received subsequent to the
RO's July 1989 denial of service connection for PTSD, and the
claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of a preexisting
injury suffered or disease contracted in the line of duty.
38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2000).
Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO
may not thereafter be reopened and allowed. The exception to
this rule is 38 U.S.C.A. § 5108, which provides that "[i]f
new and material evidence is presented or secured with
respect to a claim, which has been disallowed, the [Board]
shall reopen the claim and review the former disposition of
the claim." Therefore, once an RO decision becomes final
under section 7105(c), absent the submission of new and
material evidence, the claim cannot be reopened or
adjudicated by the Department of Veterans Affairs (VA).
38 U.S.C.A. §§ 5108, 7105(c); Barnett v. Brown, 83 F.3d 1380,
1383 (Fed. Cir. 1996).
New and material evidence is defined as evidence not
previously submitted to agency decisionmakers which bears
directly and substantially upon the specific matter under
consideration; which is neither cumulative nor redundant; and
which, by itself or in connection with evidence previously
assembled, is so significant that it must be considered in
order to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a) (as in effect prior to August 29, 2001).
Under this standard, new evidence may be sufficient to reopen
a claim if it contributes to a more complete picture of the
circumstances surrounding the origin of a veteran's injury or
disability, even where it would not be enough to convince the
Board to grant a claim. Hodge v. West, 155 F.3d 1356,
1363 (Fed. Cir. 1998).
Department of Veterans Affairs (VA) is required to review for
its newness and materiality the evidence submitted by a
claimant since the last final disallowance of a claim on any
basis in order to determine whether a claim should be
reopened and readjudicated on the merits. See Evans v.
Brown, 9 Vet. App. 273 (1996). In the present appeal, the
veteran was informed of the last final disallowance of the
claim for service connection for PTSD in August 1989.
Therefore, the Board must review, in light of the applicable
law, regulations, and the United States Court of Appeals for
Veterans Claims (Court) cases regarding finality, the
additional evidence submitted since that determination. In
order to do so, the Board will describe the evidence which
was of record at that time, and the evidence presented
subsequently. The prior evidence of record is vitally
important in determining newness and materiality for the
purposes of deciding whether to reopen a claim. Id.
The old evidence
The service medical records are negative for complaints or
findings pertaining to PTSD. On a report of medical history
completed in September 1968, in conjunction with the
separation examination, the veteran denied nightmares, loss
of memory, trouble sleeping and depression or excessive
worry. A psychiatric evaluation on the separation
examination in September 1968 was normal.
Personnel records disclose that the veteran was in Vietnam
for one year and that his principal duty was pipeline
specialist. Among the medals he received were the National
Defense Service Medal, the Vietnam Service Medal and the
Republic of Vietnam Campaign Medal.
The veteran was hospitalized by the VA from January to March
1989. He had a history of alcohol and other substance abuse
of twenty years duration. He was admitted for alcoholism
rehabilitation and treatment. The diagnoses were alcohol
dependence and polydrug abuse.
By letter dated in April 1989, the RO requested information
concerning the veteran's in-service stressors and any
treatment he had received for PTSD following service. No
response was received.
The veteran was afforded a psychiatric examination by the VA
in April 1989. He noted that he had been hospitalized in the
psychiatric unit of a private facility in 1970 due to a
combination of drugs, alcohol and nightmares. He stated that
he was in combat in Vietnam. He claimed that loud noises
bothered him and that his sleep was poor. He reported that
he had dreams of people without heads and firefights. He
maintained that he lost his temper. Following a mental
status evaluation, the diagnoses were PTSD and multiple
substance abuse, in remission.
The additional evidence
The veteran was admitted to St. Therese Hospital in September
1991 after becoming very agitated and delusional. It was
noted that he thought he saw Viet Cong near his house. He
related that he had had some difficulty with flashbacks on
three occasions since service. It was indicated that he had
been in the same hospital in 1972 due to depression. The
diagnoses on discharge were brief psychotic episode and PTSD.
The veteran was again seen in St. Therese Hospital in March
1992. The diagnosis was PTSD.
The veteran was hospitalized by the VA in May 1992. He
admitted to being depressed to the point that he had
considered suicide in the previous two weeks. He reported a
past medical history of being hospitalized in 1975 after
battling nine men. Clinical records from the hospitalization
reflect an assessment of, in pertinent part, post-traumatic
stress. The diagnoses on discharge were alcohol abuse and
antisocial personality traits.
VA medical records dated from 1988 to 1995 have been
associated with the claims folder. When the veteran was seen
in the mental health clinic in August 1988, it was noted that
he had recently sustained a head injury at work, and he had
then lost his job. It was reported that he was having an
exacerbation of his PTSD symptoms. A referral note dated
February 27, 1989, during the VA hospitalization beginning in
January 1989, indicates that the veteran was seeking
assistance with post-traumatic stress as an outpatient. In
September 1994, he noted a history of depression since 1992.
He claimed that the depression started after a car accident
with head trauma. When he was seen in January 1995, it was
indicated that the veteran had PTSD-related complaints and a
history of substance abuse.
On an Agent Orange examination in January 1995, the veteran
related that he went "wacko" when he returned from Vietnam.
He stated that he exhibited anger/guilt, bad dreams,
flashbacks and problems with society. The veteran was seen
in the social work service in March 1995 and reported no PTSD
symptoms. It was indicated that, at that time, it would
appear that the veteran's symptoms might have been the result
of a head injury. The following month, the veteran presented
in an upset and agitated stated. He related a recent arrest
for domestic violence. He stated that he had PTSD, and
maintained that he had nightmares and flashbacks.
On VA psychiatric examination in March 1996, the veteran
reported that he was in combat in Vietnam as an engineer. He
spoke about burying people, some of whom were burned so badly
that he did not know if they were friends or enemies. He
described dreaming of his friends being killed. It was noted
that the veteran showed the examiner a newspaper regarding
his Vietnam experiences. He related that since his return to
the United States, he had nightmares that disturbed his sleep
at least once a week. He dreamed about burned bodies and of
people being injured in other ways. The diagnoses were PTSD
and history of substance abuse.
VA outpatient treatment records show that the veteran was
seen in June 1996. A synopsis of the veteran's traumatic
memories was listed. He stated that about two weeks after he
arrived in Vietnam, he encountered his first firefight on
October 11, 1967. He related that there were gunfire flashes
from the tree line and that, although nobody was hurt, he had
never been so scared in his life. He reported that he saw
three Viet Cong fall and that was the first time he saw
anyone killed. He indicated that he later discovered a
bullet hole in the truck he was driving. The examiner
commented that the veteran began to noticeably sweat and
literally choked as the veteran described the scene during an
intensive therapy session. The veteran indicated that he
recalled smelling the scent, hearing the sounds and feeling
the sensations of the incident as if it were being re-
experienced.
It was also noted in the June 1996 report that the veteran
described one of the last firefights he encountered in
Vietnam as the most vivid and disturbing to him. He stated
that he had been sent by his commanding officer to pick up a
welder in Dak To. He noted that he heard lots of gun fire
and explosions on the highway, and when he got to that area,
it was apparent that a convoy had been ambushed, and that the
escorts and drivers were all dead and on fire. He described
the smell and horrific images of the dead as he recalled
being exposed to their burning bodies, but he was helpless to
intervene.
The June 1996 report also contained a description of an
incident he only began to recall as a patient in the PTSD
Recovery Program. He recalled witnessing the murder of three
Vietnamese people by an American.
The veteran was hospitalized by the VA in November 1996. It
was reported that he was suicidal prior to admission. It was
indicated that he tried to kill himself with a knife and his
girlfriend stopped him. It was related that it was a
flashback to Vietnam, in which he saw people who were not
really there. The pertinent discharge diagnoses were poly
substance abuse, history of PTSD and personality disorder,
not otherwise specified.
The veteran was seen in a VA mental health clinic in May
1997. It was indicated that the loss of trust in others
triggered a strong emotional reaction within him as it
related back to losses from his combat duty. The veteran
also related that he had had experiences that he described as
flashbacks, where he saw shadows flashing by him triggering
the fear and paranoia of his past combat experiences.
In March 1999, the veteran submitted his response to a
request for information relating to his stressors and his
claim for service connection for PTSD. The veteran stated
that when he was in the hospital in Vietnam, he helped feed
and change the dressings on men with no arms and legs, and he
fed the wounded who could not help themselves. He reported
that he witnessed the deaths of a Vietnamese farmer and
family, and noted that an individual called "Skull" had
killed them for no reason. The veteran indicated that
"Skull" told him that he would kill him [the veteran] and
therefore he did not say anything about this incident.
The veteran described another incident in which an Army of
the Republic of Vietnam soldier came after him with an ax
handle and he fractured his thumb while trying to protect
himself. He reported that this injury was in December 1967.
He furnished the names of two friends who were killed in
Vietnam. The veteran also noted that he was constantly fired
upon, especially when laying pipe and that he was exposed to
mortar and rocket attacks. He related that he was in a
bunker that received a direct hit with mortar rounds when he
was assigned to the 643rd pipeline unit.
A report of contact dated in May 1999 reflects that the RO
contacted St. Therese Hospital in an attempt to obtain
records of the veteran's earlier hospitalization at that
facility. However, it was indicated that the facility only
kept records for about ten years.
By letter dated in May 1999, the RO wrote the United States
Armed Services Center for the Research of Unit Records
(USASCRUR) in an attempt to verify the stressor that the
veteran alleged occurred on October 11, 1967. In the letter,
the RO provided the names of the veteran's friends who had
been killed while he was in Vietnam.
By letter dated in November 2000, USASCRUR provided
information that reflected an enemy attack at the veteran's
base on October 8, 1967 in which one American soldier and one
Vietnamese civilian were killed, and three enemy killed.
USASCRUR also noted that it was unable to verify that the
veteran's friends had been wounded or killed in action during
the time the veteran was assigned in Vietnam.
The veteran was afforded a VA psychiatric examination in
January 2001. The examiner noted that he thoroughly reviewed
the veteran's claims folder and records. The veteran stated
that the stressor which seemed to be the most prominent to
him was when he was hospitalized after he broke his arm and
he was requested to assist with unloading people from
choppers. He related that many of these people were
seriously wounded, and that often it was just body parts that
came in. He added that he recalled body parts, loading them
into bags and seeing blood all over. The veteran further
stated that he assisted with the feeding of the wounded men,
many of whom had blown off arms or legs, and that this was
very stressful to him. During the examination, the veteran
also described being exposed constantly to mortar and rocket
attacks. He was unable to recall the name of a man he had to
take to the hospital.
Following a mental status evaluation, the diagnosis was PTSD.
The examiner indicated that it was evidenced by severe
recurrent nightmares, hyperarousal and avoidance. She opined
that these were related mostly to the time the veteran spent
caring for more severely wounded men in the hospital and
loading body parts into bags. The examiner further noted
that the veteran did not recall any men he was with being
injured. She acknowledged that there was some discrepancy in
the veteran's description of the attack (in October 1967) and
the one verified by USASCRUR. In light of the nature of the
flashbacks the veteran used to have, the examiner suspected
that the veteran most likely was involved in a stressor where
he and others were attacked by the Viet Cong. An addendum to
the examination report notes that the veteran was afforded
neuropsychological testing and that the findings were
consistent with those obtained from Vietnam veterans with
combat-related PTSD.
Analysis
Several decisions of the Court have affected the adjudication
of claims for service connection for PTSD. It appears that in
approaching a claim for service connection for PTSD, the
question of the existence of an event claimed as a
recognizable stressor must be resolved by adjudicatory
personnel. If the adjudicators conclude that the record
establishes the existence of such a stressor or stressors,
then and only then, the case should the case be referred for
a medical examination to determine the sufficiency of the
stressor and as to whether the remaining elements required to
support the diagnosis of PTSD have been met. In such a
referral, the adjudicators should specify to the examiner(s)
precisely what stressor or stressors has been accepted as
established by the record, and the medical examiners must be
instructed that only those events may be considered in
determining whether the veteran was exposed to a stressor
during service of sufficient severity as to have resulted in
ongoing psychiatric symptomatology. In other words, if the
adjudicators determine that the existence of an alleged
stressor or stressors in service is not established by the
record, a medical examination to determine whether PTSD due
to service is present would be pointless. Likewise, a
diagnosis of PTSD based upon claimed stressors whose
existence the adjudicators have not accepted would be
inadequate for rating purposes. See Zarycki v. Brown, 6 Vet.
App. 91 (1993); West v. Brown, 7 Vet. App. 70 (1994); and
Caluza v. Brown, 7 Vet. App. 498 (1994).
The evidence received subsequent to the July 1989 rating
decision includes VA medical records from 1988 to 2001, to
include the report of a VA psychiatric examination in January
2001, private medical records, the testimony of the veteran
and his parents at a hearing at the RO and information from
USASCRUR. The Board acknowledges that the medical records
reflect treatment many years after service. The evidence
shows that the veteran's claim was previously denied on the
basis that a stressor had not been documented. Similarly,
while recent efforts to verify the veteran's specific
stressors were unsuccessful, the Board notes that there are
certain similarities in the veteran's description of the
attack that he asserted occurred on October 11, 1967, and the
attack confirmed by USASCRUR that took place merely three
days earlier. The veteran has complained in general that he
was fired upon and was exposed to mortar and rocket attacks.
In addition, while a VA examiner has associated the veteran's
PTSD with caring for wounded and loading body parts, it was
also stated that his neurological test findings were
consistent with those obtained from Vietnam veterans with
combat-related PTSD.
In summary, the Board finds that the evidence submitted since
the RO's determination of July 1989, when viewed in
conjunction with all the other evidence of record, is not
cumulative and redundant and has significant effect upon the
facts previously considered. It verifies that the veteran
was exposed to combat situations with the enemy, which he has
noted as being stressful, and it also relates examination
test findings with combat-related PTSD. As such, it is "new
and material" as contemplated by 38 C.F.R. § 3.156(a) (as in
effect prior to August 29, 2001), and provides the basis to
reopen the veteran's claim for service connection for PTSD.
ORDER
New and material evidence has been submitted to reopen a
claim for service connection for PTSD, and to that extent,
the appeal is granted.
REMAND
The veteran seeks service connection for PTSD.
During the pendency of the appellant's appeal, The Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000) (now codified as amended at 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107 (West Supp.2001)) (VCAA) became law. VA
issued regulations to implement the VCAA in August 2001. 66
Fed. Reg. 45,620 (Aug 29, 2001) (to be codified as amended at
39 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The
amendments were effective November 9, 2000 except for the
amendment to 38 C.F.R. § 3.156(a), which is effective August
29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a),
the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R.
§ 3.159(c)(4)(iii), VA stated that "the provisions of this
rule merely implement the VCAA and do not provide any rights
other than those provided in the VCAA" "66 Fed. Reg. 45,629.
Accordingly, in general where the record demonstrates that
the statutory mandates have been satisfied, the regulatory
provisions likewise are satisfied.
VCAA essentially eliminates the requirement that a claimant
submit evidence of a well-grounded claim, and provides that
VA will assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also includes new notification provisions.
Specifically, it requires VA to notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
of which portion, if any, of the evidence is to be provided
by the claimant and which part, if any, VA will attempt to
obtain on behalf of the claimant.
In the case of a claim of service connection for PTSD, if the
evidence establishes that the veteran engaged in combat with
the enemy and the claimed stressor is related to that combat,
in the absence of clear and convincing evidence to the
contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. §
3.304(f) (2000).
Where a veteran did not engage in combat with the enemy, or
where the claimed stressor is unrelated to combat, his
uncorroborated testimony, by itself, is insufficient to
establish the occurrence of the alleged stressor. Instead,
the record must contain service records or other credible
supporting evidence to corroborate his testimony as to the
occurrence of the claimed stressor. Dizoglio v. Brown, 9 Vet.
App. 163, 166 (1996); West v. Brown, 7 Vet. App. 70 (1994);
38 C.F.R. § 3.304(f).
In this case, the veteran's claimed in-service stressors
involve combat-type situations, consisting of his having been
under repeated enemy attack and having witnessed explosions
wherein some people were killed. The record shows that the
veteran has recounted being under enemy attack on October 11,
1967 at Cam Rahn Bay in the area of An Khe. The USASCRUR has
verified that an enemy attack at the veteran's base occurred
on October 8, 1967, and that one American, one Vietnamese
civilian and three of the enemy were killed. A VA examiner
has noted that testing has shown the veteran's findings were
consistent with combat-related PTSD, and also stated that his
symptoms were related to caring for injured men.
Consequently, the case is REMANDED for the following action:
1. The RO should comply with the notice
and duty to assist provisions of the
Veterans Claims Assistance of Act of
2000. The RO must request that the
veteran identify the names, addresses and
approximate dates of treatment for all VA
and non-VA health care providers who have
provided treatment for the veteran. With
any necessary authorizations, the RO
should attempt to obtain copies of
pertinent treatment records identified by
the veteran in response to this request,
which have not been previously secured.
If the RO is unable to obtain any
identified records, the RO must identify
to the veteran which records were
unobtainable, describe to the veteran the
efforts which were made in an attempt to
secure the records, and the RO must
describe any further action to be taken
by VA with respect to the claim. Copies
of all correspondence to the veteran must
be sent to the veteran's representative.
2. It is requested that a VA examination
be performed by a VA psychiatrist who has
not previously examined the veteran in
order to determine the nature and
severity of the reported PTSD. The
claims folder and a copy of this Remand
must to be made available to the examiner
in conjunction with the examination. All
indicated tests are to be conducted. The
RO is to inform the examiner that the
veteran's stressor of coming under enemy
attack in October 1967 is deemed to have
been verified and may be used as a basis
for a diagnosis of PTSD.
If the diagnosis of PTSD is deemed
appropriate, the psychiatric examiner
should specify whether the stressor found
to be established by the record is
sufficient to produce PTSD; and whether
there is a link between the current
symptomatology and the inservice stressor
found to be established by the record.
The veteran must be informed of the
potential consequences of his failure to
report for any scheduled examination, and
a copy of this notification must be
associated with the claims file.
3. The RO should carefully review the
examination report and the other
development requested above to ensure
compliance with this remand. If any
development requested above is not
accomplished, remedial action should be
undertaken. Stegall v. West, 11 Vet.
App. 268 (1998).
4. The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (codified as
amended at 38 U.S.C. §§ 5102, 5103,
5103A, and 5107) are fully complied with
and satisfied. Any binding and
pertinent court decisions that are
subsequently issued also should be
considered.
5. Then, the RO should readjudicate the
issue in appellate status on a de novo
basis. If the benefit sought on appeal
remains denied, the veteran and his
representative should be provided with a
supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An appropriate
period of time should be allowed for
response.
Thereafter, the claims folder should then
be returned to the Board for further
review, as appropriate.
If the benefit sought on appeal is not granted, the veteran
and his representative should be provided a supplemental
statement of the case and afforded an opportunity to respond.
The case should then be returned to the Board for review. The
veteran has the right to submit additional evidence and
argument on the matter remanded to the RO. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
N. W. BENJAMIN
Acting Member, Board of Veterans' Appeals